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Human rights in Ukraine – 2008. 11. FREEDOM OF MOVEMENT AND PLACE OF RESIDENCE

27.06.2009

  [1]

There were no significant changes as regards observance of the right to freedom of movement in 2008. The changeover from the system of «propiska» to one of registration continues to cause problems with a lot of procedure still not agreed. There are problems with the issue of both internal passport, and that for travel abroad, with this restricting freedom of movement. The difficulties encountered by homeless people still remain unresolved although there is some progress on this issue.

1. Freedom of movement

Due to the drawn-out nature of many criminal investigations which can sometimes drag on for many years, there has long been a problem with the use of signed undertakings not to abscond as a preventive measure. The person is unable to go outside the administrative territorial unit where s/he is registered. The longer such investigations last, the more difficult it becomes to justify the State’s interference in the individual’s freedom of movement.

For example, Mr. H. in the Cherkasy region is accused of causing medium seriousness bodily injuries to his sister, this having taken place according to the investigators on 27 August 2001. The police have on many occasions tried to close the criminal file, including because of a time bar on bringing criminal charges. However each time the court has revoked the resolution to terminate the case for various reasons. The investigation into this case has thus dragged on for 8.5 years. The accused with small breaks has already spent 8 years bound by an undertaking not to leave the place. His daughter and grandson live abroad however he has not been able to visit them all this time since he cannot obtain a passport for travelling abroad.

There are considerable problems restricting freedom of movement with the issue of both internal passports and those for travelling abroad.

The practice as regards issue of passports for travel abroad remains unsatisfactory: it takes too long, requires overcoming bureaucratic procedures, is expensive and not accessible for many citizens. It also remains uncoordinated which generates a large number of abuses and corruption in this area. For example, there are numerous cases involving demands for documents not set out in legislation (for example, insurance policies) or payment of services also not envisaged by legislation, such as a fee for a note confirming that a person does not have a criminal record.

One other problem was added to these – the lack of proper funding for the printing of passport forms. Due to arrears before the private concern «SSAPS» [Single State Automated Passport System) which effectively controls the entire process of issuing passports for travelling abroad, in summer problems again arose, with hiccups in the issue of passports. It was only in July that the Ministry of Internal Affairs [MIA] received an additional 20 million UAH for these expenses.[2] Furthermore, the Minister of the MIA called on people who were asked to pay extra for services not set out in legislation to turn to the Internal Security Service of the MIA, or to the Prosecutor’s Office.[3]

During all of last year 1.3 million passports for travel abroad were issued. Over 50 thousand people in a hurry had this done within three working days. 150 thousand people received documents within 10 working days, while most had documents prepared within a month. Most such passports were issued last year in Kyiv, and in the Dnipropetrovsk and Lviv regions..[4]

There are also problems with internal passports. The timeframe for issuing them is often breached with this restricting people’s rights since without an internal passport they can’t receive registration or carry out many other actions related to this. In past the police explain this as due to the lack of passport forms. However the problem often lies elsewhere. There remains a system of passport offices which are often located in housing and communal services [ZHEK] which are presently ordinary business enterprises. Making use of this, the passport offices very often refuse to issue an internal passport, its replacement, provide registration according to where somebody lives, take them off the register or issue various certifying documents due to arrears before the ZHEK for communal services. This practice is clearly illegal however it is abetted by the lack of control over such passport offices by the MIA.

Problems have remained with the issuing of a sailor’s identification document which substitutes a passport for this group of citizens. It is effectively the SBU that gives permission to issue such an identification document which does not comply with legislation and restricts the person’s rights.[5]

Conflict arises periodically over refusals by Ukraine to admit certain foreign nationals.

In view of the fact that Russian national Yury Luzhkov did not adhere to the conditions of the warning from the SBU [Security Service of Ukraine] regarding the unacceptability of behaviour bringing harm to Ukraine’s national interests and its territorial integrity, today, on 12 May, Y. Luzkhov was prohibited from entering Ukraine. At the present time SBU, as part of this case, has established all the circumstances of the provocative remarks of a political nature made by Y. Luzhkov in connection with the possible involvement of this foreign national in laundering money in Ukraine, including in Sevastopol. SBU as part of preventive measures has also issued a written warning to Russian national K. Zatulin regarding the unacceptability of public statements which could violate Ukraine’s national legislation.[6]

In total during 2008 border guards refused to allow 24, 760 people to enter Ukraine.[7]

The migration growth of the population having changed their permanent place of residence, lowered in January – November 2008 as against an analogous period in 2007 from 13.2 thousand to 12.7 thousand people. The amount of migration movement is continuing to fall. For example, the number of people who came to the country to live permanently fell from 40, 8 thousand to 33.5 thousand, while the number of those who left dropped from 27.6 thousand to 20.8 thousand. The vast majority of immigrants (80.2%) came from CIS countries. Among those who left Ukraine 65.8% went to CIS countries and 34.4% to other countries.[8] This in part breaks down the stereotype circulated in the media that the country is becoming ever more attractive for foreigners and that there is a significant rise in the number of migrants. Although these figures do not include illegal migrants, the latest figures on movement across the State border do not significantly alter the findings.

Overall, each year the number of Ukrainian nationals going abroad increases, as well as the number of foreign nationals who come to Ukraine.

 

Entry of foreign nationals into Ukraine in 2008[9]

 

Number of foreign nationals who entered Ukraine in total *

Of these, for the following reasons:

work-related, business or diplomatic

tourism

private

to study

to work

Immigration (to live)

Cultural or sport exchange, religious or other

Total

25449078

1048370

1693348

22290975

65224

11987

27842

311332

 

Number of foreign nationals who visited Ukraine and of Ukrainians who went abroad (2000-2008)[10]

 

Year

Number of Ukrainian nationals who travelled abroad - total

Number of foreign nationals who visited Ukraine – in total

2000

13 422 320

6 430 940

 

2001

14 849 033

9 174 166

 

2002

14 729 444

10 516 665

 

2003

14 794 932

12 513 883

 

2004

15 487 571

15 629 213

 

2005

16 453 704

17 630 760

2006

16 875 256

18 935 775

 

2007

17 334 653

23 122 157

 

2008

15 498 567

25 449 078

 

 

2. Freedom to choose ones place of residence

In general there is freedom of choice of place of residence in Ukraine however there are a number of shortcomings in the system of legal regulation which have remained from the days of «propiska» [«registration»][11].

 The problems are on two levels:

1) The exercising of many rights and freedoms continues to depend on ones official place of registration. The ability to exercise many rights and freedoms solely in accordance with ones place of residence clearly dates from serfdom and the Soviet system of «propiska». It is solely on the basis of place of registration that the civil rights envisaged by the Laws of Ukraine «On State social standards and State social guarantees», «On pensions», «On education», «On the fundamental principles of health care legislation in Ukraine», «On protection of the population from infectious diseases», «On employment of the population», etc can be exercised. Citizens without a place of residence and registration cannot update documents, find work, or receive medical and social assistance.

This problem is effectively an indirect additional measure of compulsion by the authorities to obtain registration. Another form of such compulsion is the present administrative liability for residing somewhere without registration. Clearly the State can have a system of registration in the interests of public order. However such registration should not entail the difficulties and inconveniences which people encounter at present.

2) People who do not have their own homes, and their number is constantly rising, are not in most cases able to register at the place where they actually live due to an unwarrantedly narrow interpretation of the grounds for registration. Thus, the concept of registration is not clearly differentiated from the right to own or use housing with this creating many obstacles in registration.

Such obstacles in fact harm the State since they explain why a considerable number of people live without registration or not where they are registered (registering where this is legally possible, for example, with relatives). The aim of creating a system of mandatory registration of individuals is thus not achieved, and such a system at present is effectively not working. For that reason the State does not have an accurate database of individuals according to their place of residence.

One should also note that Ukrainian legislation regarding registration is exceptionally strict, yet the MIA does not apply it fully which demonstrates the failure of legislation to comply with real social relations. For example, a system has still not been introduced for registration of the place where people are staying.

This demonstrates the need for significant changes to legislation on registration where the latter becomes a formal, not a permission-based, procedure which does not provide any rights regarding ownership or use of housing.

 

3. The rights of the homeless

There remain problems with protecting the rights of the homeless. As already mentioned, without registration people are deprived of many rights. This significantly worsens the legal status of homeless people and effectively removes them from the system of State and social security.

The State has endeavoured to regulate this shortcoming by passing a number of legislative acts which should resolve this problem.[12]

These documents create registration centres for the homeless, night shelters and social rehabilitation centres. However the practical implementation of these normative acts remains unsatisfactory.

For example, in Kyiv the homeless are provided with temporary registration for two months in the registration centres for the homeless, and then not allowed to extend the registration which has no logical or legal justification. This means that temporary registration is provided in order to get documents, yet the person then effectively returns to their previous situation due to the lack of registration and therefore exclusion from State social programme.

Mr K. lived and worked in Kyiv, however he did not have housing of his own and therefore had nowhere where he could register. He approached the Social Care Home under the Central Department for Social Protection of the Kyiv City State Administration (KCSA). They registered him, but only on a temporary basis, then they took the registration away. He complained to the Prosecutor, however that either had no effect at all or only fleeting, for example, he was registered for 14 days. It is clear that the Social Care Home did not have legal grounds for its actions. This dragged on for several years. In July 2008 with the help of UHHRU lawyers he lodged an administrate suit with the court. On 3 December 2008 the Solomyansky District Court in Kyiv allowed the applicant’s claim in full and ordered that he be registered indefinitely and provided with a place in the Social Care Home. The court thus confirmed that homeless people should be provided with indefinite registration..[13]

This story is a typical example where the rights of the homeless were violated.

Furthermore this legislation has only been implemented in some areas. This is mainly in regional centres, and therefore a significant percentage of homeless people do not have access to the new system of assistance for the homeless.

According to government figures, at the beginning of 2008 only 44 social institutions for the homeless were functioning, with 13 of these not State-owned. However just these 44 centres provided their services to 10 thousand people (approximately 227 people a year per centre).[14]

In November 2008 the Cabinet of Ministers approved an Action Plan on implementing the Concept Strategy for Protection of Homeless People up to 2012.[15] It is planned, for example, by 2012 to introduce a register of homeless people since at present there are no such records, and there are effectively no official statistics regarding the number of homeless and scope of the assistance provided. Over several weeks a Coordination Council was created on the social protection of homeless people and abandoned children.[16]

Improvement is also needed to legislation on social protection for the homeless; the resolution of a number of problems in the prevention of homelessness; reintegration of the homeless; the work of social institutions for homeless families so that these can live together as a family; the formation of a social housing fund; training of social workers specializing in helping the homeless; treatment of such prevalent and especially dangerous illnesses among the homeless as tuberculosis, hepatitis, HIV/AIDS, venereal disease, skin complaints, alcoholism, drug dependence, and others.

 

4. Recommendations

1) In compliance with the Opinion of the Parliamentary Assembly of the Council of Europe (№190) on the entry of Ukraine to the Council of Europe, powers of registration of citizens, foreign nationals and stateless individuals should be passed to the Ministry of Justice of Ukraine

2) Conclude the process of reform of legislation as regards registration, taking into account positive international experience and the Law «On freedom of movement and freedom to choose one’s place of residence».

3) Abolish the procedure stipulated in the law on freedom of movement and free choice of place of residence for registration of a temporary place where one is staying (this procedure is set out in the law but not applied in practice).

4) Complete a computerized record system of registration of citizens, using the best models applied in other countries and observing international standards for safeguarding human rights. Such a system should be autonomous and not contain other personal data collected by other State authorities.

5)  Consider broadening the grounds for registration (for example, as this was done in the law on the Register of Voters), as well as reviewing legislation in order to eliminate dependence of exercise of rights on place of registration. Provisions of legislation should also be revoked which stipulate that registration provides rights with regard to owning or using residential premises. The procedure for canceling registration in private accommodation needs to be simplified, and the interdependence of the fact of registration on the right to the given premises in State and municipal housing removed. Without this, measures to create a realistic system of registration will be impossible.

6) Bring the activities of the MIA into compliance with legislation as regards issuing passports. This includes standardizing such procedure for the entire country and putting a stop to the unlawful demands imposed for additional documents (such as insurance policies, documents confirming the lack of a criminal record, documents giving an identification number, and papers confirming payment for supplementary services).

7) MIA should ensure timely issue of internal passports..

8) MIA must strengthen control over adherence to legislation in passport offices which are located in ZHEK.

9) Improve the procedure for issuing sailors’ identification documents, taking into account the provisions of the Constitution of Ukraine on freedom of movement and clearly defined grounds for limiting trips abroad.

10) Abolish the practice of restricting travel abroad for people having access to state secrets

11) .A system of registration of homeless people must be introduced as soon as possible in order to heighten targeted assistance and make it more effective.



[1] By Volodymyr Yavorsky, UHHRU Executive Director

[2] The MIA has regulated smooth issue of passports for travel abroad // The Department of Public Relations of the MIA, 09.07.2008, http://mvs.gov.ua/mvs/control/main/uk/publish/printable_article/123473.

[3] The problem around issue of passports for travel abroad has been resolved // Department of Public Relations of the MIA, 16.07.2008, http://mvs.gov.ua/mvs/control/main/uk/publish/printable_article/125719.

[4] 1.3 million passports for travel abroad were issued last year // Department of Public Relations of the MIA, 29.01.2009, http://mvs.gov.ua/mvs/control/main/uk/publish/printable_article/175824.

[5] More detail about this can be found in “Human Rights in Ukraine – 2006”

[6] Information from the Press Centre of the SBU from 12 May 2008 http://sbu.gov.ua/sbu/control/uk/publish/article?art_id=78505&cat_id=78711

[7] Results of the operational activities of the State Border Guard Service // Official website of the Service http://pvu.gov.ua/control/uk/publish/article?art_id=48708&cat_id=46466.

[8] On the socio-economic situation in Ukraine during 2008. State Committee of Statistics

http://ukrstat.gov.ua/operativ/operativ2008/mp/dopovidx/arh_dop2008.html.

[9] Based on information from the Administration of the State Border Guard Service // Official website of the Service, http://ukrstat.gov.ua/operativ/operativ2009/tyr/tyr_u/vig2008_u.htm.

[10] Based on figures for the State Committee of Statistics http://ukrstat.gov.ua/operativ/operativ2007/tyr/tyr_u/potoki2006_u.htm.

[11] This was a permission-based system of registration, which the Constitutional Court in 2001 declared was in contravention of the Constitution of Ukraine (translator)

[12] See the Law On the fundamental principles of social protection for the homeless and abandoned children” which came into force on 1 January 2006; Order of the Ministry of Employment and Social Policy of Ukraine “On approving standard provisions on institutions of social protection for homeless individuals and people released from places of confinement”, from 14 February 2006, No. 31"; Resolution No. 404 of the Cabinet of Ministers from 30 March 2006 “On approving a standard provision on a registration centre for the Homeless and Order No. 98 of the Ministry of Employment and Social Policy from 3 April 2006 N 98 “On approving standard provisions on social hotels”.

[13] See: Homeless Kyiv resident wins case against the City Administration, UHHRU website: http://helsinki.org.ua/en/index.php?id=1232041522

[14] Concept strategy for social protection of the homeless, approved by Instruction of the Cabinet of Ministers from 17 April 2008, № 639.

[15] Ludmila Denisova presented five directions in resolving the problem of the homeless, 06.11.2008 , Ministry of Employment Press Service, http://kmu.gov.ua/control/uk/publish/article?art_id=168929761&cat_id=35884.

[16] Ministry of Employment: Problems of the homeless and abandoned children will be addressed by a specially created Coordination Council. : 27.11.2008, 10:00, http://kmu.gov.ua/control/uk/publish/news_article?art_id=173853927&cat_id=35884.

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